Use Logic to Win Arguments: A Primer for Lawyers

Arguments are the primary tools of our trade and we cannot use them effectively unless we understand and obey the rules of logic. Despite their import, most students
do not have an opportunity to study the principles of logic in law school. I find this tragic and believe that logic should be a required course for all law students.

In the meantime, lawyers and law students must take it upon themselves to learn the principles of logic necessary to craft persuasive arguments. In this post, I offer a
basic primer on three tools of logic that are particularly important in the practice of law: deductive reasoning, inductive reasoning by generalization, and inductive
reasoning by analogy.

Resources

I highly recommend that all Lawyerist readers check out Judge Ruggero Aldisert’s excellent book Logic for Lawyers : A Guide to Clear Legal Thinking. If you don’t
have the time or inclination to read an entire book on the subject, Judge Aldisert also co-authored the article Logic for Law Students: How to Think Like a Lawyer,
which is great reading for lawyers and students alike. The following primer summarizes the key points in Judge Aldisert’s article.

Deductive reasoning

In deductive reasoning, a conclusion is compelled by known facts. Deduction is often expressed in the form of a syllogism, in which a conclusion is inferred from two
known premises. The most ubiquitous syllogism is:

All men are mortal.

Socrates is a man.
Therefore Socrates is mortal.

First you have the major premise, which is usually a broad and generally applicable truth; here, that all men are mortal. Then you have the minor premise, which is
usually a more specific and narrowly applicable fact; here, that Socrates is a man. And the conclusion is true as a consequence of the premises; here, that Socrates is
mortal.

The principle behind a syllogism is that what is true of the universal is also true of the specific. In deductive reasoning, you reason from the general to the particular, so
it is essential that the general statement is a universal truth. Consider the following flawed syllogism:

Some men are tall.

Socrates is a man.
Therefore Socrates is tall.

The statement, “some men are tall” does not allow you to deduct that if Socrates is a man, then he must be tall. Unfortunately, legal writing is replete with flawed
syllogisms. Don’t anchor your own arguments in flawed syllogisms. And use your knowledge of logic to expose the flawed syllogisms in the arguments of opposing
counsel. Words to watch for include: some, certain, a, one, this, that, sometimes, many, occasionally, once  or somewhere.

To underscore the importance of deductive reasoning in law, Judge Aldisert outlines syllogisms from several watershed Supreme Court opinions, including the
following syllogism from Marbury v. Madison:

The Judicial Department’s province and duty is to say what the law is.
The Supreme Court is the Judicial Department.
The Supreme Court’s province and duty is to say what the law is.

Law students should identify syllogisms when reading cases and use syllogisms in their outlines and on exams. Note that you will often have to rearrange sentences to
locate the syllogisms in cases or other texts. And sometimes, only part of the syllogism will actually be expressed. Writers often omit parts of a syllogism, such as when
a premise is obvious. Informal syllogisms in which there is an unstated premise are known as enthymemes. Moreover, legal arguments often consist of several
syllogisms which build on one another, known as polysyllogisms. Here is an example:

All men are mortal. Socrates is a man. Therefore Socrates is mortal.

All mortals die. Socrates is mortal. Therefore Socrates can die.
People who can die are not gods. Socrates can die. Therefore Socrates is not a god.

As lawyers, we should ensure that all deductive arguments in our briefs and memos are supported by sound syllogisms. The Judge offers the following generic model,
used by prosecutors in criminal cases, as a starting point to create your own syllogisms:

[Doing something][violates the law.]

[The defendant][did something.]
[Therefore the defendant][violated the law.]
Syllogisms are tools to help you evaluate and tighten your legal analysis. They are useful in outlining your arguments or deconstructing the arguments of others. But to
be logically sound, your arguments do not need to be expressed through syllogisms. The truth of a premise may be so obvious that writing the premise would make your
writing tedious, particularly given that we write for sophisticated audiences.

Inductive reasoning by generalization

When you cannot rely on universals or settled law to provide a major premise to compel your conclusion, you need to build your own major premise through inductive
reasoning. Inductive reasoning by generalization uses several specific facts to create a theory that explains relationships between those facts and supports your
conclusion. The Judge offers the following example:

Plato was a man and Plato was mortal.

Julius Caeser was a man and Julius Caeser was mortal.
George Washington was a man and George Washington was mortal.
John Marshall was a man and John Marshall was mortal.
Ronald Reagan is a man and Ronald Reagan is mortal.
Therefore, all men are mortal.

To use inductive reasoning successfully, you need to ensure that your supporting facts represent an appropriate sample size and are representative. With inductive
reasoning, you can never be certain that your conclusion is true, but through your supporting facts, you should be able to establish that your conclusion is highly
probable.

Inductive reasoning by analogy

Another form of inductive reasoning common in law is analogy, in which you make one-to-one comparisons and draw similarities between two different things. Rather
than reasoning from the general to the specific (deductive reasoning) or from the specific to the general (generalizations), analogy requires reasoning from the specific
to the specific.

Analogy is a common part of everyday life and legal practice. For instance, I am a lawyer and I find Lawyerist to be useful to my practice, so I assume other lawyers
will find Lawyerist useful to their practice, as well. The Judge offers the following formula for an analogy:

A has characteristic Y.
B has characteristic Y.
A also has characteristic Z.
Because A and B both have characteristic Y, we conclude that B also shares characteristic Z.

To use analogy in law, the Judge suggests that you (1) establish similarities between two cases; (2) announce the rule of law embedded in the first case; and (3) apply
the rule of law to the second case. Successful analogy depends on the relevancy of the comparison. It is therefore important to detail the similarities between the cases
and to acknowledge their differences. You must establish that the relevant similarities outweigh the relevant differences and therefore the outcomes should be the same.

prospective lawyers should make themselves intimately familiar with the fundamentals of deductive reasoning. Deductive reasoning, asAristotle taught long ago, is
based on the act of proving a conclusion by means of two other propositions. Perhaps 90 percent of legal issues can be resolved by deduction, so the importance of
understanding this type of reasoning cannot be overstated. Second, students should acquaint themselves with the principles of inductive generalization. Inductive
generalizations, used correctly, can help students resuscitate causes that seem hopeless. Third, reasoning by analogy—another form of inductive reasoning—is a
powerful tool in a lawyer’s arsenal. Analogies help lawyers and judges solve legal problems not controlled by precedent and help law students deflect the nasty
hypotheticals that are the darlings of professors. Finally, we comment briefly on the limitations of logic.

The law’s insistence on sound, explicit reasoning keeps lawyers and judges from making arguments based on untethered, unprincipled, and undisciplined
hunches.Traditionally, logicians separate the wider universe of logical reasoning into two general categories: inductive and deductive. As we will see, both branches
of logic play important roles in our legal system. We begin with deductive reasoning because it is the driving force behind most judicial opinions. Defined broadly,
deduction is reasoning in which a conclusion is compelled by known facts.

According to the traditional jargon, the syllogism’s three parts are called the major premise, the minor premise, and the conclusion. The major premise states a broad
and generally applicable truth: “All men are mortal.” The minor premise states a specific and usually more narrowly applicable fact: “Socrates is a man.” The
conclusion then draws upon these premises and offers a new insight that is known to be true based on the premises: “Socrates is a mortal.”

For all its power, the basic principle of the syllogism is surprisingly straightforward: What is true of the universal is true of the particular.

It is no exaggeration to say that the syllogism lies at the heart of legal writing.

We urge all law students to get in the habit of thinking in syllogisms. When briefing a case as you prepare a class assignment, the skeleton of the deductive syllogism
should always poke through in your description of the case’s rationale. Young attorneys should probably tattoo this on the back of their hands—or at least post it
above their keyboards: Whenever possible, make the arguments in your briefs and memos in the form of syllogisms. A clear, well-constructed syllogism ensures each
conclusion is well-supported with evidence and gives a judge recognizable guideposts to follow as he sherpas the law along his desired footpath.

To shape a legal issue in the form of a syllogism, begin by stating the general rule of law or widely-known legal rule that governs your case as your major premise.
Then, in your next statement, the minor premise, describe the key facts of the legal problem at hand.
Finally, draw your conclusion by examining how the major premise about the law applies to the minor premise about the facts. Like this: Major Premise: Cruel and
unusual punishment by a state violates the Eighth Amendment. Minor Premise: Executing a minor is cruel and unusual punishment by a state. Conclusion: Executing a
minor is forbidden by the Eighth Amendment.

Although this might look simple, constructing logically-sound syllogisms requires a lot of grunt work. You must thoroughly research the law’s nooks and crannies
before you can confidently state your major premise. And you must become sufficiently knowledgeable about your case to reduce key facts to a brief yet accurate
synopsis. If you find yourself having trouble organizing a brief or memo, try shoehorning your argument into this generic model, which is based on the argument
made by prosecutors in nearly every criminal case: Major premise: [Doing something] [violates the law.] Minor premise: [The defendant] [did something.] Conclusion:
[The defendant] [violated the law.] The prosecutor’s model can serve as a useful template for most legal problems. Using it will help you reduce your arguments to
their most essential parts. In addition to providing a useful template, the above example reflects the fact that the three parts of a syllogism—the two premises and
the conclusion—are themselves built from three units. Logicians call these units “terms.” Two terms appear in each statement: the “major term” in the major premise
and conclusion, the “minor term” in the minor premise and conclusion, and the “middle term” in the major and minor premises but not in the conclusion. Notice that
the middle term covers a broad range of facts, and that if the conclusion is to be valid, the minor term must be a fact that is included within the middle term.
Although the jargon can get confusing, the basic idea isn’t hard to grasp: Each statement in a syllogism must relate to the other two.

Sometimes it’s more than a matter of rearranging sentences and rephrasing statements to match up with the syllogistic form. Sometimes a legal writer doesn’t
mention all parts of the syllogism, leaving you to read between the lines. Logicians are certainly aware that an argument can be founded on a syllogism although not
all parts of the syllogism are expressed. They even have a name for such an argument: an enthymeme. Often, enthymemes are used for efficiency’s sake. If a premise
or conclusion is obvious, then the writer can save her precious words to make less obvious points. Judges and lawyers write for more educated audiences—or so we
hope—and so as a law student you had better be ready for hosts of enthymemes.

Mistakes of this sort remain extremely common in legal writing. Certain buzzwords, however, can help distinguish valid syllogisms from fallacious ones. Alarm bells
should sound immediately if you spot terms in the major premise like “some,” “certain,” “a,” “one,” “this,” “that,” “sometimes,” “many,” “occasionally,” “once,” or
“somewhere.” Remember at all costs that the principle behind the syllogism is that what’s true of the universal is true of the specific. In deductive reasoning, you
reason from the general to the particular. Accordingly, if you’re unsure about the nature of the general, you can’t draw proper conclusions about the particular.

Logical errors, unfortunately, are often tough to catch. Here is a different one: Major Premise: All superheroes have special powers. Minor Premise: Superman has
special powers. Conclusion: Superman is a superhero. Unless you’re an avid comic book reader, it might take a moment to spot the misstep. Knowing that every
superhero has special powers doesn’t allow you to conclude that everyone with special powers is a superhero. Recall again the golden rule of the syllogism: You can
only draw a conclusion about the particular (Superman, in this case) after you demonstrate that it’s part of the universal class. Thus, a correct syllogism would look
like this: Major Premise: All superheroes have special powers. [General statement about a class] Minor Premise: Superman is a superhero. [Statement that an
individual belongs to the class]

Conclusion: Superman has special powers. [Conclusion that the individual has properties common to other members of the class] Remember this: Just because two
things share a common property does not mean they also share a second property.

I. INDUCTIVE REASONING: GENERALIZATIONS Deductive reasoning and its adherence to the “Socrates is Mortal” type of syllogism is the spine that holds our legal
system together. Justice Cardozo estimated that at least nine-tenths of appellate cases “could not, with the semblance of reason, be decided in any way but one”
because “the law and its application alike are plain,” or “the rule of law is certain, and the application alone doubtful.”37 After more than four decades on the bench,
Judge Aldisert can confirm that Justice Cardozo’s statement remains true today. In the language of logic, this means that practicing lawyers spend most of their time
worrying about the minor premises of syllogisms (i.e., can the facts of the case be fit into the territory governed by a particular rule?).

Inductive generalization is a form of logic in which big, general principles are divined from observing the outcomes of many small events.38 In this form of inductive
logic, you reason from multiple particulars to the general. To see how this works, suppose that you are asked to determine whether all men are mortal—the premise
of the first syllogism we discussed. If nobody hands you the simple statement “All men are mortal,” and you lack a way of deducing it, you have to turn to inductive
reasoning. You might use what you know about particular men and their mortality as follows:

Plato was a man, and Plato was mortal. Julius Caesar was a man, and Julius Caesar was mortal. George Washington was a man, and George Washington was mortal.
John Marshall was a man, and John Marshall was mortal. Ronald Reagan was a man, and Ronald Reagan was mortal. Therefore, all men are mortal. The principle
underlying this way of thinking is that the world is sufficiently regular to permit the discovery of general rules. If what happened yesterday is likely to happen again
today, we may use past experience to guide our future conduct.

The absence of complete certainty, however, does not dilute the importance of induction in the law. As we stated at the outset, we look to inductive reasoning when
our legal research fails to turn up a hefty, hearty precedent that controls the case. When there is no clear statute—no governing authority—to provide the major
premise necessary for a syllogism, the law student must build the major premise himself.

1 Finding that the state had no binding case law on point, the court turned to inductive reasoning.

The difficulty comes in knowing how many instances are sufficient to make a generalization. Three? Ten? Forty thousand? This is where the art comes in. As a rule of
thumb, the more examples you find, the stronger your argument becomes.

Analogy can help a budding lawyer advance untested legal arguments in the classroom and the courtroom. We stress that mastering the principles of analogy is not
just another garden-variety lawyer’s skill. Rather, it is one of the most crucial aspects of the study and practice of law.

In the world of the law, analogies serve a very specific purpose. Attorneys use them to compare new legal issues to firmly established precedents.54 Typically, this
means that a current case is compared to an older one, and the outcome of the new case is predicted on the basis of the other’s outcome.

Edward Levi, the foremost American authority on the role of analogy in the law, described analogical reasoning as a three step process: (1) establish similarities
between two cases, (2) announce the rule of law embedded in the first case, and (3) apply the rule of law to the second case. This form of reasoning is different
from deductive logic or inductive generalization. Recall that deduction requires us to reason from universal principles to smaller, specific truths. The process of
generalization asks us to craft larger rules from a number of specific examples. Analogy, in contrast, makes one-to-one comparisons that require no generalizations or
reliance on universal rules. In the language of logicians, analogy is a process of reasoning from the particular to the particular.
An example might help to clarify the distinction. Imagine you are asked to defend a client who received a citation for driving a scooter without a helmet. After
scouring Westlaw, you find there’s no controlling statute. There are, however, two precedents that could influence the result. One opinion holds that motorcyclists
must wear helmets; the other case says that a helmet is not required to operate a bicycle. Does either control the issue in your case? Without a clear universal rule or
past cases on point, deductive logic and inductive generalizations are of little help. Instead, you must rely on the power of analogy to convince a judge that helmet
laws don’t apply. To defend your client, you must suggest that driving a scooter is similar to riding a “fast bicycle.” You might argue that small scooters can’t go faster
than well-oiled road bikes. Thus, a scooter presents no more danger to its operator or other drivers than a bicycle. You could also argue that scooters, like bikes, can’t
be driven on highways. The process of drawing these comparisons and explaining why they are important is the heart of reasoning by analogy. The idea is to find
enough similarities between the new case and old precedent to convince a judge that the outcomes must be the same.

A proper analogy should identify the respects in which the compared cases, or fact scenarios, resemble one another and the respects in which they differ. What
matters is relevancy—whether the compared traits resemble, or differ from, one another in relevant respects.

Notwithstanding the best efforts of logicians, no one has devised a mathematical equation for determining whether an analogy is strong or weak. “It is a matter of
judgment, not mechanical application of a rule.”60 Thinking back to our scooter example, your opponent will argue vigorously that a scooter resembles a motorcycle
because bothhave quick-starting, gas-powered engines that are beyond human control. This comparison may strike the judge as more powerful than yours,
convincing him to rule against your client.

Logicians teach that one must always appraise an analogical argument very carefully. Several criteria may be used: (1) the acceptability of the analogy will vary
proportionally with the number of circumstances that have been analyzed; (2) the acceptabilitywilldepend upon the number of positive resemblances (similarities)
and negative resemblances (dissimilarities); or (3) the acceptability will be influenced by the relevance of the purported analogies. [Citing logicians]. For Appellants to
draw a proper analogy, they had the burden in the district court, as they do here, of showing that the similarities in the facts of the two cases outweigh the
differences.

If you do find yourself in the Socratic spotlight, remember that the basic principles of analogy; they can be your lifeline. Begin by discussing the facts of a similar case
that you are familiar with, and then lay out particulars of the hypothetical the professor has asked. Draw as many comparisons between the two cases as you can.
If the relevant similarities outweigh the relevant differences, the outcomes of the cases should be the same. The more practice you get working with analogies, and
the more adept you become at articulating why certain similarities or differences are relevant, the better you will fare when it’s your turn to face the music.

Logic is the lifeblood of the law, and that understanding basic logical forms will assist you both in law school and in your practice as a lawyer.

The point is an obvious but important one: make sure your premises are true. If you use an untrue premise as a lawyer, it’s an invitation to the other side to pillory
you.

Judges have notions of how things should be—of what is wrong and what is right—and often strive to do justice as much as to fulfill the mandates of precedent.

But always bear in mind: An argument that is correctly reasoned may be wrong, but an argument that is incorrectly reasoned can never be right. You may find the
discipline of parsing legalese into logical forms to be timeconsuming and arduous at first, but as you become more comfortable with logic’s framework, you will find
that the exercise helps you more efficiently peel a case back to its essence. A solid footing in logic will help you feel more secure when you find yourself in a complex
doctrinal thicket. And while the fundamentals of logic laid out in this article will not give you a magic carpet on which you can float above the legal briar patch, we
believe they will give you a machete that will help you start hacking your way through the tangle.

Words are the essential tools of the law. In the study of law, language has great importance; cases turn on the meaning that judges ascribe to words,
and lawyers must use the right words to effectuate the wishes of their clients. It has been said that you will be learning a new language when you
study law, but it’s actually a bit more complicated. There are at least four ways in which you encounter the vocabulary of law.

First, and most obvious, you will be learning new words that you probably have not encountered before. These words and phrases have meaning only
as legal terms. Words or phrases such as res judicata, impleader, executory interest, demurrer and mens rea,oblige students to acquire some new
vocabulary. Learning the meaning of these words is essential to understand any case or discussion which uses them.

Second, and a bit more difficult, some recognizable words take on different or new meanings when used in the law. Malice, for example, when used
in the law of defamation, does not mean hatred or meanness; it means “with reckless disregard for the truth.” Similarly, “consideration” in contract
law, has nothing to do with thoughtfulness; it means something of value given by a party to an agreement. When a party is “prejudiced” in the law it
usually means that the party was put at some disadvantage, not that the party is bigoted. “Fixtures” in property law are much more than bathroom
and kitchen equipment. There are many words like this in the law, and students must shake loose their ordinary understanding of a word to absorb
its legal meaning. Words that have distinct or specialized meanings in the law are sometimes called “terms of art.”

Third, there are words whose meaning expands, contracts or changes, depending on the context or the place in which it is used. In one context
(divorce, for example), a person may be considered a “resident” of a state if she has lived there for 6 months. In another context (getting a driver’s
license) a person may be considered a “resident” after just a few days. In one state, a person may be said to “possess” a firearm if it is within
his/her reach in an auto. In another state, that person might have to be in control of the firearm to be considered in possession of it. Thus, the same
word can have a different meaning depending on what question is being asked, and where it is being asked.

Fourth, there are words that have come to signify large bodies of law or legal doctrine, and act as shorthand terms for complex concepts. The terms
“unfair competition,” “due process of law,” “foreseeable,” and “cruel and unusual punishment” are a few examples. These terms have been subject
to interpretation by judges in many cases over long periods of time, and there is little hope of finding a clear and concise definition that can serve in
all contexts.

Finally, students need to develop a heightened respect for linguistic precision. Because the meaning of words is so crucial to the craft of lawyering,
students will be expected to use words carefully and precisely. You will learn, for example, that there are legally significant differences between
“Sally lives in the United States,” “Sally resides in the United States,” “Sally is domiciled in the United States,” and “Sally is a citizen of the United
States.” Even grammar and punctuation can be crucial: a person who leaves $50,000 “to each of my children who took care of me,” has a different
intention than a person who leaves $50,000 “to each of my children, who took care of me.” The lawyer drafting the will needs to know how to wield
that comma, or better yet, how to avoid any confusion in the first place.

Once you have learned the legal meanings of words, you are expected to use them with precision. Substituting one for another can result in serious
errors and misunderstandings. The legal meanings of words constitute the common language of lawyers and judges, who rely on this language to
communicate efficiently and effectively.

 Law, to be sure, involves more than logic. Yet the myriad of factors that contribute to good lawyering and fair judging suggest that the “life of the law,”
while not logic alone, is a manifold of activities that all use and depend upon reason in specialized ways. The precision of detail required in the drafting of
contracts, wills, trusts, and other legal documents is a rational precision; the care in planning and strategizing demanded of trial attorneys in deciding
how to present their cases is a rational care; the skill in written and oral argumentation required for appellate practice is, quite obviously, a rational skill;
the talent expected of administrative law judges in crafting coherent findings of fact and conclusions of law is a rational talent; and the ability of trial and
appellate court judges to separate, dispassionately and without bias, the kernel of argument from the rhetorical and emotive chaff of adversarial
presentation, so as to render judgments that are justified under the law, is a rational ability.

[E]very legal analysis should begin at the point of reason, continue along a path of logic and arrive at a fundamentally fair result.” (Sunrise Lumber v.
Johnson, Appeal No. 165). To criticize, reverse, or overrule an administrative or judicial decision as “arbitrary,” “capricious,” “unsupported by law,” or
“contrary to precedent” is to say nothing more, but nothing less, than that the decision is deficient in logic and reason.

1) Good communication skills 7) Creativity

Lawyers must be orally articulate, have good written communication The very top lawyers are not only logical and analytical, but they
skills and also be good listeners. In order to argue convincingly in the display a great deal of creativity in their problem solving.
courtroom before juries and judges, good public speaking skills are The best solution is not always the most obvious and in order to
essential. Communication and speaking skills can be developed during outmanoeuvre your challenger it is often necessary to think outside the
your studies by taking part in activities such as mooting or general box.
public speaking.
Lawyers must also be able to write clearly, persuasively and concisely,
as they must produce a variety of legal documents.
But it’s not all about projection. To be able to analyse what clients tell
them or follow a complex testimony, a lawyer must have good listening
skills.
2) Judgement 
The ability to draw reasonable, logical conclusions or assumptions
from limited information is essential as a lawyer.
You must also be able to consider these judgements critically, so that
you can anticipate potential areas of weakness in your argument that
must be fortified against.
Similarly, you must be able to spot points of weakness in an
oppositions argument. Decisiveness is also a part of judgement. There
will be a lot of important judgement calls to make and little time for
sitting on the fence.
3) Analytical skills
Both the study and practice of law involve absorbing large quantities of
information, then having to distil it into something manageable and
logical.
At times, there will be more than one reasonable conclusion, or more
than one precedent applicable to resolving a situation.
A lawyer must therefore have the evaluative skills in order to choose
which is the most suitable.
4) Research skills
Similarly, being able to research quickly and effectively is essential to
understanding your clients, their needs, and to preparing legal
strategies.
Preparing legal strategies requires absorbing and comprehending
large amounts of information, then distilling them down into something
manageable and useful.
5) People skills
Law is not an abstract practice. Irrelevant of how well someone
does academically, at the end of the day lawyers work with people, on
behalf of people, and the decisions that are made effect peoples’ lives.
They must be personable, persuasive and able to read others. This
allows them to gauge juror’s reactions and the honesty of witnesses.
This allows them to decide upon the best approach to take in order to
achieve the desired outcome: either clients taking their advice or
reaching a favourable negotiation with the opposition.
6) Perseverance
“Perseverance is not a long race; it is many short races one after the
other.” Even studying to become a lawyer takes a great deal of
perseverance and commitment – and that’s before you even start
work!
Typically, a lawyer will do an undergraduate law degree, an LPC, and
then a training contract before qualifying. Most will also complete
a vacation scheme or some other kind of work experience.
When working on a case, you must have the perseverance to complete
the work necessary to drive it to a successful finish.